Citation Nr: 9922687
Decision Date: 08/12/99 Archive Date: 08/24/99
DOCKET NO. 95-12 505 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUES
1. Entitlement to a disability rating in excess of 10
percent for headaches.
2. Entitlement to a disability rating in excess of
10 percent for hemorrhoids.
3. Entitlement to a disability rating in excess of
10 percent for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
N. W. Fabian, Counsel
REMAND
The veteran had active duty from December 1968 to January
1976 that has not been verified and from January 1976 to
December 1992 that has been verified. These matters come to
the Board of Veterans' Appeals (Board) from a January 1994
rating decision of the Department of Veterans Affairs (VA)
Regional Office (RO). In that rating decision the RO granted
entitlement to service connection for headaches and
hemorrhoids, both of which were rated as noncompensable, and
for tinnitus in the left ear, rated as 10 percent disabling.
The RO also denied entitlement to service connection for
difficulty swallowing and insomnia. The veteran has
perfected an appeal of the denial of service connection for
difficulty swallowing and insomnia, and the ratings assigned
for headaches, hemorrhoids, and tinnitus.
In his January 1995 notice of disagreement and March 1995
substantive appeal the veteran reported having been denied
employment due to his service-connected disabilities. The RO
has not, however, determined the applicability of an extra-
schedular rating for the claimed disabilities. See Floyd v.
Brown, 9 Vet. App. 88 (1996), appeal dismissed per curiam 9
Vet. App. 253 (1996); 38 C.F.R. §§ 3.321(b), 4.16 (1998).
In the January 1994 rating decision the RO also denied
entitlement to service connection for chest pain and
tightness, dizzy spells, and blackouts. The veteran did not
appeal that decision, but in his March 1995 substantive
appeal he claimed entitlement to service connection for a
rapid heart rate. He also claimed entitlement to service
connection for cancroid. These issues have not yet been
adjudicated by the RO, and are referred to the RO for
appropriate action. See Bruce v. West,
11 Vet. App. 405 (1998) (issues that are raised for the first
time on appeal should be referred to the RO for appropriate
action).
In an October 1996 rating decision the RO granted entitlement
to service connection for a depressive/anxiety disorder,
claimed as insomnia, and for gastroesophageal reflux, claimed
as difficulty swallowing. The Board finds that the grant of
service connection constitutes a grant of the benefit sought
on appeal, and that issues pertaining to insomnia and/or
difficulty swallowing are no longer within the Board's
purview. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir.
1997) (a notice of disagreement filed in response to the
denial of service connection ceases to be valid if service
connection is granted by the RO).
In the October 1996 rating decision the RO also increased the
disability ratings for headaches and hemorrhoids from zero to
10 percent, and continued the 10 percent rating for tinnitus.
The veteran was notified of the decision in October 1996. In
a November 1996 statement he stated that he was pleased with
the decision on his claims, although his physical condition
was not getting any better. He also stated that if his
cervical and lumbar spine disorder was included in his
overall evaluation, he totally agreed with the decision that
had been made. His cervical and lumbar spine disabilities
have been included in his combined rating since January 1994.
The veteran has perfected an appeal of the ratings assigned
for headaches, hemorrhoids, and tinnitus. It is not clear
from his November 1996 statement, however, whether it is his
intention to withdraw that appeal. Although the veteran is
normally presumed to be seeking the maximum benefit
available, he has indicated that he now agrees with the
ratings assigned for the service-connected disabilities. See
Fenderson v. West, 12 Vet. App. 119 (1999). The Board is
precluded from proceeding with an appeal if the veteran has
indicated that adjudication of the appeal should cease. See
Hamilton v. Brown, 4 Vet. App. 528 (1993)(en banc), aff'd, 39
F.3d 1574 (Fed. Cir. 1994). These issues are, therefore,
being remanded to the RO for additional development,
including clarification of the veteran's intent.
To ensure that VA has met its duty to assist the veteran in
developing the facts pertinent to his claims and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The RO should contact the veteran and
determine whether it is his intent to
pursue his appeal of the disability
ratings assigned for headaches,
hemorrhoids, and tinnitus. If it is his
intent to withdraw the appeal, he should
submit a written statement to that
effect. 38 C.F.R. § 20.204.
2. If it is the veteran's intent to
pursue the appeal, the RO should obtain
the names and addresses of all medical
care providers, inpatient and outpatient,
VA and private, who treated the veteran
for headaches or hemorrhoids since
October 1994. After securing any
necessary release, the RO should obtain
copies of such records that are not in
file.
3. If it is the veteran's intent to
pursue the appeal, he should be provided
a VA neurological examination in order to
determine the frequency and severity of
his headaches. The claims file and a
copy of this remand should be made
available to and be reviewed by the
examiner in conjunction with the
examination. The examination should
include any diagnostic tests or studies
that are deemed necessary for an accurate
assessment.
The neurologist should conduct a thorough
neurological examination and determine
whether the headaches are manifested by
prostrating attacks. If so, the examiner
should document the length and frequency
of the attacks.
4. If it is his intent to pursue the
appeal, he should also be provided a VA
medical examination in order to document
the severity of the manifestations of
hemorrhoids. The claims file and a copy
of this remand should be made available
to and be reviewed by the examiner in
conjunction with the examination. The
examination should include any diagnostic
tests or studies that are deemed
necessary for an accurate assessment.
The examiner should conduct a thorough
examination and determine whether the
hemorrhoids are large or thrombotic,
irreducible, with excessive redundant
tissue, evidencing frequent recurrences.
The examiner should also determine
whether the hemorrhoids are manifested by
persistent bleeding with secondary
anemia, or fissures.
5. The RO should then review the claims
file to ensure that all of the above
requested development has been completed.
In particular, the RO should ensure that
the requested examinations are in
compliance with the directives of this
remand and, if they are not, the RO
should take corrective action. See
Stegall v. West,
11 Vet. App. 268 (1998).
6. If appropriate, the RO should re-
adjudicate the issues of entitlement to
higher disability ratings for headaches,
hemorrhoids, and tinnitus, including
extra-schedular ratings. If any benefit
in appellate status remains denied, the
veteran and his representative should be
furnished a supplemental statement of the
case and be given the opportunity to
respond.
The case should then be returned to the Board, if in order.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Mark D. Hindin
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).